On Motion for Rehearing.
The appellee insists that we should not have reversed the judgment upon the ground that the court permitted him to recover at the rate of $45 per day for the eight Sundays included within the 60-day suspension contract, because the illegality had not been pleaded. The original contract is one providing for day labor at the rate of $135 per day, not to exceed 30 days. The supplemental contract provides for suspension of such labor, not to exceed 60 days, and fixes the rate of compensation at $45 per day during such suspension. Article 299 of the Penal Code provides that any person who shall labor on Sunday shall be fined not less than $10 and not piore than $50. In the light of this article a contract providing for labor of a character not expressly permitted by subsequent articles of the code is prima facie illegal. The kind of labor provided for by the contract does not fall within any exception found in the statute. It is insisted that we should take judicial notice of the fact that swabbing and pumping oil wells is done on Sunday. We might as appropriately take judicial notice of the fact that gambling and drinking intoxicating liquors, contrary to law, is done on Sunday, but that would not make such acts legal. The rule is that whenever the illegality of the contract sued upon, appears it is the duty of the court to at once decline to enforce it, even though such illegality has not been pleaded. Bishop v. Japhet (Tex. Civ. App.) 171 S. W. 499; Keith v. Fountain, 3 Tex. Civ. App. 391, 22 S. W. 191.
It is further insisted that we erred in holding that the appellee was not entitled to recover upon the item of $1,215 for 9 days work in November. This recovery is based upon an allegation that the appellee swabbed the well on block 88 for 9 days, and under the contract is entitled to recover $135 per day therefor. The proof is that he did not swab the well for 9 days, and the only evidence remotely bearing upon that allegation is that he worked a number of days preparing to swab it. The court submitted special issue No. 4, as follows:
“If you answer special issue No. 3 Yes, then advise how many days the said plaintiff, Earl J. Caulk, was engaged in the work on said lease preparatory to drilling in said well.”
The objection to this issue was there was no testimony to support it, and it “does not conform with the pleadings in the case.” As stated in the original opinion, appellee did not seek to recover for the value of work done preparatory to actual drilling or swabbing, and the court should not submit an issue not raised by the pleadings, even though there is evidence to support it. S. A. & A. P. Ry. Co. v. Stuart (Tex. Civ. App.) 178 S. W. 17. Moreover, a judgment, based upon evidence of facts not pleaded, must be reversed. Taylor v. Long (Tex. Civ. App.) 16 S. W. 1084; Brown Grain Co. v. F. & M. National Bank (Tex. Civ. App.) 173 S. W. 942. We think there can be no doubt as to this question. Although there is proof to show that the appellee worked 9 days getting his machinery upon the ground and in shape to begin to swab, and although the issue is submitted to the jury and a finding returned in favor of appellee, no judgment can be based thereon, because it is not pleaded as a ground of recovery.
*555Further objection is made to the holding, with reference to proving the contents of the telegram. The manager of the Western Union Telegraph Company, Pogenphol, testified that the original telegram had been destroyed. The court qualified the bill of exceptions by stating that secondary evidence of the telegram was admitted because it was shown that the original was destroyed. Having accepted the bill with this qualification, the appellee is bound by it. The motion for rehearing is therefore overruled.
Appellee offers to remit the two items upon which he recovered, viz. $360, for the eight Sundays included in the time of suspension and $1,215 for the 9 days’ preparatory work, if his motion for rehearing is overruled, and then prays that after such remittitur the judgment be affirmed. In accordance with this request, the remittitur is ordered entered, and judgment is here rendered for ap-pellee, less the two items above mentioned, and the legal interest thereon.
The appellant company moves the court, in the event the remittitur is entered and the judgment is affirmed for the residue, that its motion for rehearing be considered. We have carefully reviewed the motion, and the only matter presented in it which has not been heretofore sufficiently discussed is the contention that the court erred in submitting special issue No. 2 as follows:
“Did Locke, on behalf of the defendant Osage Oil’ Company, employ the plaintiff, Earl J. Caulk, to move his star rig on block 88 on said defendant’s lease, to drill in and swab the well on the said oil and gas lease ? ”
—without, as required by article 1984a, submitting a special charge defining the term “agent.” The word “agent” does not appear in the issue. Besides, if the issue submitted by the court nowhere used that term and the appellant wanted the term defined, it was its duty to submit a special charge giving such definition. Failing in this, the appellant cannot complain here. K. C., M. & O. Ry. Co. v. Oates (Tex. Civ. App.) 185 S. W. 1014.
The appellant’s motion is overruled, and the judgment, less the amount remitted, is affirmed.